### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30527

LATRINA D. THOMAS, Tutrix, on behalf of Ka’Dary Da’Shun Thomas, Plaintiff–Appellee,
v. SCOTT NUGENT, individually and in his official capacity as police officer for the City of Winnfield, Defendant–Appellant.

A ppeal from the United States District Court for the Western District of Louisiana USDC No. 1:08-CV-1167

Before JOLLY, GARZA, and OWEN, Circuit Judges. PER CURIAM: * Latrina D. Thomas b rought suit on b ehalf of her min o r son seeking damages for the death o f her son’s f ather, Baron Pikes. The district court denied Officer Scott Nugent’s assertion of qualified immunity a s to Thomas’s excessive force c laim. We reverse and remand f or dismissal of the claims against Nugent. U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 28, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-30527 Document: 00512355915 Page: 1 Date Filed: 08/28/2013No. 12-30527 I Thomas co n t e n d s t h a t O f f icer Nugent used excessive force when P ikes was tased eight tim e s o n t h e evening t hat Nugent and another officer, Cargyle Branch, arreste d Pikes. An active felony warrant f or Pikes’s arrest was outstanding when O ffic e r Nugent spotted Pikes as he was walking along a sidewalk. Nugent called for backup. He had prior d ea l i n g s w ith Pikes and considered him a flight risk. Officer Branch arrived in a separate vehicle, and

w h e n Branch stepped o ut and tried t o speak to Pikes, Pikes ran. The ensuing foot chase lasted approximately three m inutes and e nded when O fficer Branch pointed his firearm at Pikes and ordered him to the ground. Pikes complied, and the officers handcuffed him. Pikes was breathing heavily. The officers then directed P i k e s, who was six feet t all and weighed 247 pounds, to stand up, but he refused to comply. A witness at a nearby business heard Pikes say, “oh, ya’ll just drag me, take me, carry me.” This witness heard the officers repeatedly ask Pikes to get up and w alk, and when P i k e s d i d not

a c c ede, t he officers said that they would count to three, then tase him. T h e y counted to three, and when Pikes did not arise, they a gain asked h im to get up and walk a nd told him t h a t t h e y would count to three again, which t hey did. After c ounting to three a second time a n d y e l l i n g “taser, taser” without movement on Pikes’s part, they th e n t a s e d Pikes in “drive stun” mode in the middle o f Pikes’s back. This m ode of delivery is utilized as a complia n c e procedure because it causes temporary and localized p ain, as opposed to “probe mode,” which results in incapacitation. The officers contend that Pikes r olled away from the first a dministration of the taser in stun m ode and that the taser d evice then deployed “at point blank

ra n g e . ” Thomas c ontends that the probes p ierced Pikes’s flesh and that he received a “ probe mode” shock , t h o ugh Thomas c oncedes that all taser shocks except f or this one were in drive stun mode. W e a ccept Thomas’s v e rsion of the

2 Case: 12-30527 Document: 00512355915 Page: 2 Date Filed: 08/28/2013No. 12-30527

facts a s true. 1 P ikes then got up and walked about ten f eet before falling to his knees. Nugent gave another verbal warni n g and administered another drive stun (the s eco nd stun) to the middle of P i kes’s back. Nugent told Pikes that if he did not get up, N ugent would tase h im again. Pikes did not comply, and Nugent tased Pikes a third time in drive stun m ode. Nugent and Branch then tried to lift Pikes, but he refused to get up and told the officers that he would not go w i th them. After ordering Pikes to g et up several more times, and issuing another verbal w arning, Nugent tased Pikes for a fourth time in drive s t un mode. Pikes then stood up and walked as far as a concrete barrier but st o pped at that b arrier and laid a cross it, asking the officers to leave him there so that he c ould die. T he o fficers ordered him t o get up so that they could get h im into

a law enforcement v ehicle and, after warning h i m, tased him a fifth t ime in drive stun mode. He d id not comply, and the officers r epeated this sequence, s tunning Pikes a sixth time in d rive stun mode. At that point, Pikes said that he would go, t he officers helped him u p, and he walked until h e came to a parking lot, at whi c h p o i n t he fell down. P ikes asked for help to g et u p, the o fficers assisted him, and he was p lace d i n to Officer Branch’s vehicle. Approximately twelve minutes had expired since Pikes was handcuffed. During the d r i v e t o t h e police department, Pikes told Branch, “I’m dead
anyway, I’m dead anyway.” Upon arrival at the p olice d epartment, Pikes would not exit the vehicle, sa y i n g t h a t h e “wanted t o stay in the car so he could die.” Nugent perform e d a s park test on the stun gun device thinking that i t might

1 R a m i rez v . M

a rti nez , 716 F. 3d 369, 378 ( 5th Cir. 2013) ( citing H aggerty v . Tex. S. U ni v . , 391 F. 3d 653, 655 ( 5th Cir. 2004) ( “In an interlocutory ap pe a l i n w hich the d ef end ant as s erts qualif

ied i m m u n i t y, t o the extent that the d is trict court f ound that genuine f

actual d is p utes exis t, we accep t the p laintif f 's vers ion of

the f acts (to the extent ref

lected by p rop er s um m ary jud gm ent evid ence) as true. ”)).

. 3 Case: 12-30527 Document: 00512355915 Page: 3 Date Filed: 08/28/2013No. 12-30527

motivate Pikes. When Pikes d id not exit, Nugent warned him t hat he would tase him and did so, in drive stun mode, to Pikes’s upper right chest, by h i s shoulder. While being tased (for the seventh time), P ikes said that he would get out, and Nugent stopped the shock after two seconds rather than allowing the device to complete an automatic five second cycle. Nugent helped Pikes out of t he vehicle, and Pikes dropped to the ground. Nugent asked Pikes to get up and Pikes r esponded that he would not. Nugent again warned him and then administered another, t h e eighth a nd l a st, shock in drive stun mode to the middle of Pikes’s back. Pikes did not respond, and Nugent a nd another o fficer picked h i m up and “had to drag him” into the police department build i n g
. They placed him in a chair, but Pike s f

e l l o f f the chair more than once. When Nugent asked Pikes what drugs he had taken, P ike s s a i d that he had taken PCP and crack, but

s u b s e q u e n t a nalysis showed only marijuana in his system. Pikes was “breathing kind of heavy,” and Nugent immediately requested an ambulance. P a r a m e d ics arrived and found P ikes on the floor, unresponsive. After being a dministered a sternum rub, Pikes regained c o nsciousness and mumbled

a few words. Paramedics attached heart monitor leads, but P i k e s s t o p ped breathing while the paramedics were pl a c i n g blood p ressure cuffs on him. Paramedics b egan resuscitation efforts and continued them as Nugent drove the ambulance to the hospital. P ikes was “flat l ining” at this point. After treatment at the hospital for about an hour, Pikes w as pronounced d ead. An autopsy revealed that Pikes’s red blood c ells had sickled before his death. T he officers did n ot know that Pikes had sickle cell anemia. However, t he c a u s e of Pikes’s death is not at issue. Thomas sued Officer Nugent, alleging t hat he violated Pikes’s constitutional rights under the Fourth a nd Fourteenth Amendm e n t s b y using excessive force and because he was deliberately indif ferent to P ikes’s n eed for

4 Case: 12-30527 Document: 00512355915 Page: 4 Date Filed: 08/28/2013No. 12-30527

medical attention. Officer Nugent moved for summary judgment on the ground of qualified immunity. Although the district court g ranted the motion a s to the deliberate indifference claim, it denied summary judgment as to excessive force. Officer Nugent now appeals this denial of summary judgment. II “The d e n i a l of a motion for summary j udgment b ased o n qualified immunity is immediately appealable under the collateral order d octrine ‘to the extent that it turns on an issue of law.’” 2 This mean s t h a t w h e n “the district court finds that genuinely d isputed, material f a c t i ssues preclude a qualified immunity determination, this court can review only their m ateriality, not their genuineness.” 3 “Whether there are material issues of fact is r e viewed de novo .” 4 I II “The doctrine of qualified immunity serves to shield a government official from civil liability for damages based upon t h e performance of discretionary functions if the official’s acts were objectively reasonable in light of then clearly established law.” 5 This privilege “is an immunity from suit rather than a mere defense t o liability;” accordingly, “i t i s e f fectively l o st if a case is erroneously permitted to go to trial.” 6

2 F l o res v . Ci ty of Pa l aci os , 381 F. 3d 391, 393 ( 5th Cir. 2004) ( quoting Mi tchel l v . Forsyth , 472 U

. S. 511, 530 ( 1985) )

.

3 M a ni s v . L a w son , 585 F. 3d 839, 842 ( 5th Cir. 2009) ; see a l so Whi te v . Ba l dera m a , 153 F. 3d 237, 240 ( 5th Cir. 1998) ( p er curiam ) ( “[ W] e p os s es s juris d iction to hear an interlocutory ap p eal challenging the materiality of the f act is s ues that led the dis trict court to d eny s um m ary jud gm ent but

. . . w e lack juris d iction to hear interlocutory ap peals challenging the genuinenes s of thos e fact is sues .”)

.

4 M a ni s , 585 F. 3d at 843.

5 Thom p son v. U

p shur Cnty. , TX

, 245 F. 3d 447, 456 ( 5th Cir. 2001)

.
6 M i tchel l , 472 U

. S. at 526. 5 Case: 12-30527 Document: 00512355915 Page: 5 Date Filed: 08/28/2013No. 12-30527

The qualified immunity defense has two prongs: (1) whether an official’s conduct violated the plaintiff’s c learly established constitutional rights, and (2) whether the government official’s conduct was objectively reasonable in light of clearly established law. 7 Once a de f e n d a n t pleads qualified i mmunity, the plaintiff has the burden to rebut this defense b y establishing genuine issues of fact as to both prongs. 8 The plaintiff m ust offer more than “mere allegations” in order to negate the defense of qualified immunity. 9 “A court may rely o n either
p r o n g o f the defense in its analysis” and may conduct its inquiry in a n y sequence. 1 0 We c onsider only the second prong o f the qualified immun i ty analysis because it resolves this appeal. Thomas did not r aise a material dispute as to whether Officer Nugent’s actions were objectively reasonable in light of clearly established law. The “clearly established” standard “does not mean that officials’ conduct is protected by qualified immunity unless ‘the very action in question has previously b een held u n l a w ful.’” 1 1 But n either does an official l ose qualified immunity “merely because a c ertain right is c l early established in the abstract.” 1 2 In other words, the fact that the abstract right to be free from excessive force is clearly estab l i shed does n ot categorically negate qualified immunity. “Otherwise, ‘[p]laintiffs would be able t o convert the rule of qualified

7 Thom p son , 245 F. 3d at 457.

8 See, e. g. , B row n v. Ca l l aha n , 623 F. 3d 249, 253 ( 5th Cir. 2010)

.
9 M a ni s , 585 F. 3d at 843 (internal quotation m ark s om itted )

.
1 0 Brow n , 623 F. 3d at 253 ( citing M a ni s , 585 F. 3d at 843) ; see a l so Pea rson v . Ca l l a ha n , 555 U

. S. 223, 242 ( 2009)

.

1 1 Ki nney v . Wea v er , 367 F .3d 337, 350 ( 5th Cir. 2004) (en banc) ( quoting A nderson v . Crei ghton , 483 U

. S. 635, 640 ( 1987) )

.

1 2 Id. 6 Case: 12-30527 Document: 00512355915 Page: 6 Date Filed: 08/28/2013No. 12-30527

immunity

. . . into a rule o f virtually u nqualified liability simply by alleging

v i o l a t ion of e xtremely abstract rights.’” 1 3 T he “central concept” is “fair warning,” 1 4 which means that an officer i s entitled to q ualified immunity unless “all but the plainly incompetent or those who k nowingly violate the l aw” would have known that the conduct at issue violated constitutional rights. 1 5 Thomas relies on Bryan v. McPherson 1 6 a nd N ewman v. Guedry 1 7 to show that Officer Nugent’s u se o f force was unreasonable. Br y a n a n d N

ewman , however, are distinguishable from the c ircumstances of this case. In Bryan , the Ninth Circuit descr ibed the impact o f a taser as paralyzing the muscles throughout the body and causing excruciating pain. 1 8 In l ight of t hat holding, Thomas asserts that Officer Nu g e n t’s repeated tasering was “grossly disproportionate to the nature of the threat.” However, in Bryan the officer had stopped a driver for failing to wear a seatbelt and while the driver, Bryan, was standing beside his vehicle, the off i cer aimed the taser device at Bryan’s bare chest in probe mode and, without any warning, tasered Bryan when he took “one step” toward the officer. 1 9 One of the metal probes lodged in Bryan’s arm, and

1 3 M a ni s , 585 F. 3d at 846 n. 4 ( 5th Cir. 2009) (quoting A nderson , 483 U. S. at 639)

.
1 4 Ki nney , 367 F. 3d at 350 (internal quotation m ark s om itted )

.
1 5 M a ni s , 585 F. 3d at 845 (internal quotatio n m a r k s om itted ) ; see a lso Thom p son v . U p shur Cnty. , TX

, 245 F. 3d 447 , 4 6 0 ( 5 t h Cir. 2001) (“[ W] hen the d ef end ant m oves f

or s um m ary jud gm ent bas ed on qualif ied im m unity, it is the plaintif f’s burd en to d em ons trate that all reas onable of

f i c i a l s s i m i larly situated w ould have then know n that the alleged acts of the d ef

end ants violated the U nited States Cons titution. ”)

.
1 6 590 F. 3d 767 ( 9th C ir. 2009) , w i t h d r a w n and sup erseded , 608 F .3d 614 ( 9th Cir. 2010) , w i thdra w n a nd sup erseded , 630 F. 3d 805 ( 9th Cir. 2010)

.

1 7 703 F. 3d 757 ( 5th Cir. 2012)

.
1 8 Brya n , 590 F. 3d at 772- 73.

1 9 Brya n , 590 F. 3d at 771. 7 Case: 12-30527 Document: 00512355915 Page: 7 Date Filed: 08/28/2013No. 12-30527

it had to be surgically removed. 2 0 The electrical current delivered during the tasing paralyzed Bryan and c aused h im to fall face-first onto pavement. 2 1 Four of h is teeth were broken as a result. 2 2 In the present c a se, there is no indication that Nugent intended for the taser device to discharge in probe mode. Moreover, Pikes thereafter failed to comply with the officers’ numerous requests to get up and walk with them to the police vehicle. The Ninth Circuit’s decision in Bryan does not clearly establish that tasering Pikes unde r t he c ircumstances of this

case would constitute e xcessive force. With r egard to tasering in drive stun mode, the N inth Circuit, in Brooks v. City of S e a t t l e , 2 3 granted qualified immunity in part because unlike probe mode, 2 4 drive stun m o d e caused only tempor a r y , l o c a l i z e d p a i n and was authorized b y t he Seattle Police Department’s

use of force guide lines a s a compliance mechanism. 2 5 L i kewise here, Officer N u gent testified that t he Winnfield City Police Department authorized taser u s e in drive stun mode in the face of passive resistance. 2 6 In Newman , we considered an excessive force claim against an officer who had repeatedly tasered the plaintiff. 2 7 T he officer asserted h e had no reasonable

2 0 Id

. at 773.

2 1 Id

.
2 2 I d

.
2 3 599 F. 3d 1018 ( 9th Cir. 2010) , a f f ’d on reh’g sub n o m . M attos v . A

ga ra no , 661 F

. 3d 433 ( 9th Cir. 2011) ( en banc)

. The f inal iteration of Brya n ack now led ges this d is tinction as w ell. 630 F. 3d 805, 820 (9th Cir. 2010)

.

2 4 Ref erred to as “d art m od e” by the N inth Circuit.

2 5 Brooks , 599 F. 3d at 1026.

2 6 See G uti errez v. Ci ty of Sa n A ntoni o , 139 F. 3d 441, 448- 49 (5th Cir. 1 9 9 8 ) ( n o t i n g that a m em o rem ind ing of f icers of the p rohibition of a p articular p olice p ractice w as m aterial to as s es s ing the objective reas onablenes s of the of ficer’s cond uct)

.
2 7 N ew m a n v . G uedry , 703 F. 3d 757, 760 ( 5th Cir. 2012)

. 8 Case: 12-30527 Document: 00512355915 Page: 8 Date Filed: 08/28/2013No. 12-30527

warning that tasering a suspect multiple t imes was a constitutional violation because “there was then no binding caselaw on the appropriate use of t asers.” 2 8 Although we a greed with the officer, we held also that “in an obvious case, the Graham excessive-force factors t hemselves c a n clearly establish the answer, even without a body of relevant case law.” 2 9 These factors aid in assessing the reasonableness of the force used by considering (1) “the severity of the crime at issue,” (2) “whether the suspect poses a n immediate threat to the safety of the officers or others,” and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.” 3 0 T h o mas asserts that just as in Newman , the Graham excessive-f o r c e factors clearly establish the answer in this case such that a body of relevant case law is unnecessary. B ut as with Bryan , Newman is a lso distingui s hable from the facts of this case. In Newman , the suspect had committed no crime, posed

no threat to anyone’s safety, and did not resist the officers or f ail to comply with

a command. 3 1 In fact, the plaintiff claimed h e w a s t asered repeatedly despite

never being given any command by the officers. 3 2 The fac t s i n a n o t her recent decision of this court, Ramirez v. Martinez , 3 3 are somewhat similar to those in Newman

. 3 4 In contrast, Pikes was arrested p ursuant to an active felony warrant, attempted t o evade arrest, was s ubdued only t h rough t h e threat of deadly force, and did not comply with the officers’ repeated requests to cooperate

2 8 Id. at 763.

2 9 Id. at 764 ( internal quotation m ark s om itted )

.
3 0 G ra ha m v . Connor , 490 U

. S. 386, 396 ( 1989)

.
3 1 N ew m a n , 703 F. 3d at 764.

3 2 Id. at 763.

3 3 716 F. 3d 369 ( 5th Cir. 2013)

.
3 4 Ra mi rez , 716 F .3d at 378. 9 Case: 12-30527 Document: 00512355915 Page: 9 Date Filed: 08/28/2013No. 12-30527

in e ffectuating the arrest. Thus, this case does not provide a n “ obvious” example of excessive force such that Thomas satisfied her burden t o d e monstrate that Officer N ugent’s u se of force w as unreasonable u nder c learly established law. 3 5 Because Bryan and Newman are distinguishable from t he circumstances in this case, Thomas has prese n t e d no law to s upport the unreasonableness of Officer Nugent’s actions. Thomas has n ot met h er burden to show that Officer Nugent’s use of force w as unreasonable such t hat qualified immunity would not apply. 3 6 * * * For the foregoing reasons, we REVERSE the d i strict court’s d e nial of
summary judgment and REMAND for dismissal of Th o m a s ’ s claims against Officer Nugent.

3 5 S ee Pool e v . Ci t

y of Shrev ep ort , 691 F. 3d 624, 625- 26, 629 ( 5th Cir. 2012) ( hold ing that p olice of f icer’s us e of f

orce and tas ering t h e p laintif f d uring an arres t w as not objectively exces s ive or clearly unreas onable w hen the p laintif f res is ted arres t and d id not com p ly w ith reques ts )

. Es s entially the only evi d e n c e i n the record about the reas onablenes s or unreas onablenes s of the f orce ap plied com es f r o m t he arres ting and jail of f icers

. Cons equently, although there w ere num erous tas ings , w hich certainly rais es s us p icion as to the exces s ivenes s of f

orce, none of the evid ence s how s that the tas ings w ere an unreas onable
res p ons e und er the circum s tances ref lected in the record bef ore us .
3 6 S ee Sa m a v . Ha nni

ga n , 669 F. 3d 585, 591 ( 5th Cir. 2012) ( citing Kov a ci c v . Vi l l a rrea l , 628 F. 3d 209, 211- 12 ( 5th Cir. 2010) ) ( “O nce rais ed , the burd en s hif ts to the p laintif

f

. . . . ”)

. 10 Case: 12-30527 Document: 00512355915 Page: 10 Date Filed: 08/28/2013